In the Scottish Courts
| DOI | 10.1177/002201835001400105 |
| Published date | 01 January 1950 |
| Date | 01 January 1950 |
| Subject Matter | Article |
In the Scottish Courts
EVIDENCE
ILLEGALLY
OBTAINED-IS
IT
ADMISSIBLE?
Lawrie v.
Muir
MRS. Lawrie, adairykeeper in Portobello, having been
convicted of
the
offence of using,
without
permission a
number of milk bottles belonging
to
St.
Cuthbert's
Co-
operative Association Limited, appealed to
the
High
Court
of Justiciary.
In
support
of
her
appeal, she averred
that
the
Sheriff
had
convicted on evidence obtained as
the
result
of a search of
her
premises
made
without
authority
and
submitted
the
broad
proposition
that
evidence obtained
as a result of illegal entry, illegal search, illegal seizure
or
other
like unlawful or irregular
act
could
not
be
admitted
in a criminal prosecution.
In
view of
the
importance of
the
issue
and
of
the
lack of conclusive
authority
in Scot-
land,
the
appeal was
heard
before a
court
of seven judges.
After aprolonged
debate
and
full citation of authorities,
Scottish
and
English,
the
judgment
of
the
Court was
delivered
by
the
Lord
Justice-General.
In
course of
the
judgment,
Lord
Cooper commented on
the
following
cases-
Rattray (1897, 25 R. 315), in which
the
judges differed on
the
question of
the
admissibility, in a divorce case, of a
letter
stolen from
the
Post
Office
by
the
Pursuer;
Crook
v. Duncan (1899, 1 F.(J)
50);
Adair
v. Garry (1933, J.C.
72);
H.M.
Advocate v. McGuigan (1936,
].C.
17) a case of
murder
and
rape in which police officers, in circumstances
of urgency, searched
without
warrant
a
tent
occupied
by
the
accused
and
so discovered crucial evidence
and
in
which
Lord
Aitchison while holding
the
search justified
added
"Even
if I
thought
otherwise
and
that
the
police
had
acted
irregularly,
it
would
not
in
the
least follow
that
the
evidence would be inadmissible:
an
irregularity in
the
obtaining of evidence does
not
necessarily
make
that
evidence inadmissible"; Maccoll (1946,
S.L.T.
312);
Pringle (5, M. (H.L.) 55)
and
Elias v. Pasmore (1934, 2
K.B.164).
His
Lordship referred also
to
Lewis on Evidence,
p.
292;
Macdonald's Criminal Law,
5th
Edn., p.
,326;
81
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